RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0089p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

G LORIA M ARSHALL , Plaintiff-Appellant ,

v

.

T HE R AWLINGS C OMPANY LLC, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 16-5614

Appeal from the United St ates District Court for the Western District of Kentucky at Louisville. No. 3:14-cv-00359—Thomas B. Ru ssell, District Judge. Argued: November 30, 2016 Decided and Filed: April 20, 2017
Before: MOORE, SUTTON, and WHITE, Circuit Judges.

_________________ COUNSEL

ARGUED: J. Chris Sanders, THE ESTERLE HOUSE, Louisville, Kentucky, for Appellant. Michael D. Risley, STITES & HARBISON, P LLC, Louisville, Kentucky, for Appellee. ON BRIEF: J. Chris Sanders, THE ESTERLE HOUSE, Louisville, Kentucky, Jill M. Guarascio, Louisville, Kentucky, for Appellant. Michael D. Risley, Shannon Antle Hamilton, Rebecca A. Weis, STITES & HARBISON, PLLC, L ouisville, Kentucky, for Appellee. MOORE, J., delivered the opinion of th e court in which WHITE, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 21–23), delivered a separate opinion concurring in part and dissenting in part. 

### >No. 16-5614 Marshall v. Rawlings Co. Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Plai ntiff-Appellant Glor ia Marshall appeals the district court’s judgment granting summary judgment for Defendant-Appellee The Rawlings Company. Marshall was an employee of The Rawlings Company. After taking time off under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. , for mental-health problems, which are a disability covered by th e Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, Marshall was demoted and then fired. Ma rshall alleges claims of FMLA interference, FMLA retaliation, ADA re taliation, and intentional infl iction of emotional distress. The district court granted Th e Rawlings Company’s motion fo r summary judgment on all four
claims. For the reasons discussed below, we AFFIRM the district court’s judgment on
Marshall’s claims of FMLA in terference and intentional infliction of emotional distress,
REVERSE the district court’s judgment on the FMLA retaliation and ADA retaliation claims,
and REMAND for further proceedings cons istent with this opinion.

I. BACKGROUND
The Rawlings Company provides recovery or “cost containment” services to health insurance providers. R. 34-2 (Plumley Aff. at ¶ 6) (Page ID #165); R. 34-3 (Elsner Dep. at 13– 14) (Page ID #170). Gloria Marshall began work ing as a Workers’ Compensation Analyst for The Rawlings Company in 2006 and was promoted to Team Lead in 2011. R. 37-1 (Marshall Dep. at 57–60) (Page ID #341).
Marshall suffers from depression, anxiety, and post-traumatic stress disorder. Appellant Br. at 4; R. 34-5 (Marshall Dep. at 109–10) (Pag e ID #220); R. 37-1 (Marshall Dep. at 40) (Page ID #337). To receive treatment for her mental -health problems, Marsha ll took her first FMLA leave in February and March 2012. R. 34-5 (Marshall Dep. at 132) (Page ID #224). Marshall’s FMLA leave was not planned in advance; she t ook leave unexpectedly to address acute mentalhealth problems. Id. at 109, 112–13, 134 (Page ID #220–21, 225).No. 16-5614 Marshall v. Rawlings Co. Page 3

When Marshall returned from leave, she had a backlog of work waiting for her. Id. at 133–36 (Page ID #225). Although Marshall did not accumulate new work while she was on leave, there was old work that she had not finished because her leave was unexpected. Id. at 133–34 (Page ID #225). Marshall tes tified that she asked for but wa s denied assistance clearing out this backlog. Id. at 177–78 (Page ID #229). The Rawlings Company, on the other hand,
claimed that Marshall did receive a ssistance catching up on her work. See R. 40 (Reply in Support of Summ. J. at 12) (Page ID #507).
In addition to the conflicting evidence about how much help Marshall received catching up on her backlog, there is also conflicting evidence about whether having a backlog was common or, rather, the sign of a se rious problem. Another team lea d, Elizabeth Estrada, testified that “[i]t was a constant str uggle for all Team Leads to stay on top of closing the NR 1 files and I know of many Team Leads who had a constant inve ntory of NR files thatneeded closing.” R. 37-12 (Estrada Aff. at ¶ 12) (Page ID #435). This statement is imprecise about whether other
team leads succeeded in their “str uggle” to keep up with the “constant inventory of NR files that needed closing.” Id . Estrada pointed to an example of an analyst with “a history of tremendous backlog” who was nevertheless promoted to a team-lead position, but this statement is again imprecise. Id . at ¶ 15 (Page ID #435). Estrada did not give any context about either what constitutes a “tremendous” backlog or about the analyst’s other qualifications. Id . For its part, The Rawlings Company pointed to an example of another team lead with a backlog, explaining
that it treated Marshall and the other team lead sim ilarly. R. 34-1 (Def.’s Mot. for Summ. J. at 7) (Page ID #131); R. 34-5 (Marshall Dep. at 189–98) (Page ID #231–32). In addition, The Rawlings Company noted thatcorrespondence between Marsha ll and Vice President Jeff
Bradshaw showed that Marsha ll was consistently falling behi nd even though she was allegedly working ten to twelve hours per da y. R. 34-1 (Def.’s Mot. for Su mm. J. at 7) (Page ID #131); R. 34-14 (Marshall & Bradshaw Ema ils) (Page ID #253–58); R. 34-5 (M arshall Dep. at 214) (Page ID #234). This correspondence may indicate that Marshall’s perf ormance problems were more
severe than other team leads’ problems, but it does not provide information about whether other

1 “NR” stands for “no recovery.” See R. 34-3 (Elsner Dep. at 16–17) (Page ID #170–71). When an analyst is unable to recover any funds related to a sp ecific file, the analyst marks the file “NR.” See id. As a team lead, part of Marshall’s job was to review her team members’ NR files to confirm that no recovery was possible. See id.No. 16-5614 Marshall v. Rawlings Co. Page 4

team leads also struggled, or any other basi s of comparison, and doe s not rebut Estrada’s testimony. We do know that afte r Marshall cleared out her back log of NR files, Bradshaw quickly became worried that a new backlog was forming. R. 37-2 (Elsner Dep. at 80) (Page ID #398). “[A]t that point [Bradshaw] didn’t thi nk [Marshall] was succeed ing in her role.” Id.
In September 2012, The Rawlings Company demote d Marshall from team lead to analyst, the position she initially held at the company. R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165). Mike Elsner, Division Director for the Workers’ Compensation Division and Marshall’s secondlevel supervisor, testified that Bradshaw r ecommended demoting Marshall to Laura Plumley, then the President of the division, id. at ¶ 8 (Page ID #165), and that demoting Marshall was Plumley’s decision, R. 37-2 (Elsner Dep. at 80) (Page ID #398). Plumley confirmed Elsner’s testimony that she “was the final decision-maker in demoting Plaintiff [Marshall].” R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165). Plumley stated that her “decis ion was based solely on Plaintiff’s performance as an Analyst and a Te am Lead,” although she did not state what role Bradshaw’s recommendation played in her c onclusion that Marshall was performing inadequately. Id. at ¶ 12 (Page ID #165). Plumley also said that she “was not familiar with”
Marshall’s FMLA leave or health conditions when she decided to demote Marshall. Id. at ¶ 12 (Page ID #165). Plumley did not inform Marsha ll about the demotion; Plumley had Bradshaw
and Elsner inform Marshall. Id. at ¶ 13 (Page ID #165).

Some evidence in the record indicates that after being demoted Marshall excelled as an analyst, but other evidence indicates that she stru ggled to keep up with her workload even after being given less responsibility. On the one hand, upon Marshall’s return from her second leave, she was recognized as a high-performing analyst for having one of “the five highest submitted recoveries in the first quarter” of 2013. R. 37- 23 (Elsner Email to Analys ts) (Page ID #458). In June 2013, Marshall was exceeding the standard fo r amount of money invoiced. On the other hand, she was below the standard on other metric s, including number of checks recovered each month, number of files worked on per day, and number of outgoing cal ls per day. R. 37-2 (Elsner Dep. at 134–36) (Page ID #410); R. 34 -18 (Mid-Year Assessmen t) (Page ID #274–75). Marshall’s supervisor Matthew Monyhan submitted a mid-year report covering the first half of 2013 emphasizing similar difficulties. R. 34-18 (Mid-Year Assessment) (Page ID #274–75).No. 16-5614 Marshall v. Rawlings Co. Page 5

There were also interpersonal problems that started around the time of Marshall’s demotion. Marshall testified that, on a few separa te occasions, Bradshaw harassed her. First,
Marshall testified that during the demotion meeting, wh ich took place in September 2012,
Bradshaw “raised his voice an d started belittling” her, sa ying “you don’t know what you’re doing, you’re completely inefficient” and “[y]ou co me in here long hours and you still can’t get your job done.” R. 37-1 (Marshall Dep. at 216) (Page ID #363).

Second, Marshall testified that at a Ma y 2013 celebration lunch for Marshall and the other four analysts with the hi ghest first-quarter recoveries, Br adshaw bullied her. During the lunch, Bradshaw asked a question about morale a nd when no one responded, he asked Marshall individually. R. 37-1 (Marshall De p. at 24) (Page ID #370). Marshall testified, “I knew that he wasn’t asking me because he wanted my opinion. He wanted to single me out and put me in a corner in front of my coworkers in the middle of a restaurant.” Id. She further testified that when she gave a very generic answer, Bradshaw “was intentionally trying to escalate . . . the conversation in order to antagoni ze me” and that she felt “singl ed out” by “some kind of bully that was just blatantly trying to make me . . . upset.” Id. at 25–26 (Page ID #371).

Third, Marshall testified about a comment Brad shaw made that, she alleged, showed that Bradshaw’s hostility toward her stemmed from her taking FMLA leave for her mental-health problems. In August 2012, Marshall and Bradshaw met to discuss her workload. According to Marshall, the meeting “initiated with him saying a sarcastic comment to me, where he said, ‘So are you planning on being out any time soon again?’” R. 34-5 (Marshall Dep. at 166) (Page ID #227). She testified that she “was completely astounded” and “tha t was just obvious that he was referring to my medical leave . . . I had no vacati on or sick time to take any time off, and I was working extremely hard to try to get back. I mean, that was justa rude comment.” Id.
Only Bradshaw, Marshall, and Elsner (who Ma rshall alleges also discriminated against her) were in the demotion meeting. Only Bradshaw and Marshall we re in the meeting to discuss Marshall’s workload. However, other people were present at the celebration lunch. One person who was present, Doug Gurley, another analyst, confirmed Marshall’s acc ount. He said that Bradshaw “got so aggressive that all the analysts sat in silence because it was so uncomfortable at the table.” R. 37-14 (Gurle y Aff. at ¶ 7) (Page ID #447).No. 16-5614 Marshall v. Rawlings Co. Page 6

In March 2013, Marshall t ook a second FMLA leave. See R. 37-22 (FMLA Leave Chart) (Page ID #457). Marshall also took periods of FMLA leave intermittently from April through August. Id. Marshall believed that her coworkers were biased against her both because she had
taken FMLA leave and because the reason for he r leave was her mental health problems. She said, “I believe that after I had to take that leave, that -- that they no longer had respect for me as a person. That my medical issue, because it was me ntal health, caused them to think less of me.” R. 34-5 (Marshall Dep. at 177–78) (Page ID #229).
Supervisors’ concerns about Marshall’s perf ormance and Marshall’s concerns about her co-workers’ bias against her came to a head onSeptember 23, 2013. That day, Elsner observed
that Marshall and a coworker were not at thei r desks for a large portion of the day. R. 37-2 (Elsner Dep. at 154–57) (Page ID #415–16). Acco rding to Elsner’s testimony, Elsner and Monyhan met with Marshall and her coworker to discuss their lack of productivity. Marshall countered that she had been productive. R. 37- 2 (Elsner Dep. at 158) (Page ID #416). Again according to Elsner, Monyhan disputed Marshall’s claim that she had been productive, saying that he pulled her phone reports and they showed that she had been logged off of her phone for much of the day. Id. at 159 (Page ID #416).
When Elsner and Monyhan asked Marshall a bout her disengaged attitude, Marshall responded that she had been harassed on two occasions. Id . at 161 (Page ID #417). She said that Bradshaw harassed her during the demotion meeti ng and at the celebration lunch for analysts with high recoveries. Id . at 161–63 (Page ID #417); R. 37-1 (Marshall Dep. at 55) (Page ID #374). She explained that she had not reported th e harassment previously because she was afraid of being fired. R. 37-2 (Elsner Dep. at 173) (Pag e ID #420). Elsner sa id he was required to report the allegation of harassment and he did so. Id . at 171–72 (Page ID #419).
Elsner, Plumley, and Marshall met to discuss Marshall’s allegation of harassment. R. 34- 2 (Plumley Aff. at ¶ 14) (Page ID #166). Plum ley attested that, “Based on the information Plaintiff provided, and my experience as an in -house attorney, I did not believe Bradshaw’s alleged harassment was actionable—that is, based upon a protected class.” Id . at ¶ 25 (Page ID #166). She also attested that, “M y overall impression from the m eeting . . . was that Plaintiff was someone who was not doing her job, had been cal led on the carpet by her supervisor, and inNo. 16-5614 Marshall v. Rawlings Co. Page 7

order to deflect it, broughtup the allegations of hara ssment against Bradshaw.” Id . at ¶ 26 (Page ID #166).
Plumley reported to George Rawlings, the co mpany’s owner, about the allegations of
harassment and her conclusion that the allegations were unfounded. Id . at ¶ 27 (Page ID #168). Rawlings met with Marshall soon af ter the report from Plumley. R. 34-20 (Rawlings Aff. at ¶ 7) (Page ID #279). His affidavit stated that, “I made the deci sion to terminate Plaintiff’s employment during the course of my meeting with Plaintiff when I reached the conclusion she was making false allegations of harassment in order to avoid the cons equences of her own excessive absences from her desk the day before.” Id . at ¶ 14 (Page ID #280). He also stated that, “[a]t the time I terminated Plaintiff’s employment I did not know that Plaintiff had ever taken any family and medical leave or th at she had any medical conditions.” Id . at ¶ 19 (Page ID #281).
In May 2014, Marshall file d this lawsuit alleging FMLA interference and FMLA retaliation in violation of 29 U.S.C. § 2615; ADA retaliation in violation of 42 U.S.C. § 12112;
and intentional infliction of emotional distress in violation of Kentucky law. The Rawlings Company filed a motion seeking summary judgment on all four claims. The district judge granted The Rawlings Company’ s motion for summary judgment and dismissed all claims. Marshall timely appealed.

II. FMLA RETALIATION
Marshall alleged that The Rawlings Company retaliated against her for taking FMLA leave—first by demoting her, then by firing her. The district court erred by granting The Rawlings Company’s motion for summary judgmen t on Marshall’s FMLA retaliation claim.
“[T]he FMLA . . . affords employees protect ion in the event they suffer retaliation or discrimination for exercising their rights under the FMLA. Specifically, [a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave, nor can they use the taking of FMLA leave as a nega tive factor in employment actions.” Arban v. West Publ’g Corp. , 345 F.3d 390, 403 (6th Cir. 2003) (second and th ird alterations in original). “This prohibition includes retaliatory discharge for taking leave.” Id . It also includes demotion forNo. 16-5614 Marshall v. Rawlings Co. Page 8

taking leave. DeBoer v. Musashi Auto Parts, Inc. , 124 F. App’x 387, 391 (6th Cir. 2005). To prove that The Rawlings Company engaged in FMLA retaliation, Marshall must show that taking leave was a causal factor in The Rawlings Company’s decisions to demote and then fire
her. She can show this causal connection th rough either direct or indirect evidence. Demyanovich v. Cadon Plat ing & Coatings, L.L.C. , 747 F.3d 419, 432 (6th Cir. 2014); see Edgar v. JAC Products, Inc. , 443 F.3d 501, 508 (6th Cir. 2006).
A. Cat’s Paw Liability
In her response to defendant’s motion for summary judgment, Mars hall did not allege that Plumley and George Rawlings, the ultimate d ecisionmakers, were biased against her because
she had taken FMLA leave. In stead, Marshall alleged that Br adshaw and Elsner, lower-level supervisors, were biased against her. She alleged that Bradshawand Elsner caused her demotion and termination by Plumley and George Rawli ngs. Regarding the demotion, she alleged Bradshaw and Elsner influenced Plumley, wh o made the demotion d ecision. Regarding the termination, she alleged that Bradshaw and Elsn er influenced Plumley who, in turn, influenced George Rawlings, who made the termination d ecision. Because it depends on proving that biased lower-level supervisors influenced the ultimate decisionmakers, Marshall’s claim of FMLA retaliation depends on the cat’s paw theory of liability. Marshall’s case can proceed only if the cat’s paw theory of liability applies in FM LA retaliation cases. We hold that the cat’s paw theory does apply to claims of FMLA discrimination.

“ [T]he term ‘cat’s-paw’ refers to ‘one us ed by another to accomplish his purposes.’ In the employment discrimination context, ‘c at’s paw’ refers to a s ituation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a disc riminatory employment action.” EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles , 450 F.3d 476, 484 (10th Cir. 2006) (citations omitted). A plaintiff alleging liability under the cat’s paw theory seeks “to hold his empl oyer liable for the animus of a supervisor who was not charged with maki ng the ultimate employment decision.” Staub v. Proctor Hosp. , 562 U.S. 411, 415 (2011).No. 16-5614 Marshall v. Rawlings Co. Page 9

Previously, we “[a]ssum[ed] w ithout deciding that the cat’s paw theory of liability is
available in FMLA retaliation cases.” Henderson v. Chrysler Group, LLC , 610 F. App’x 488, 496 (6th Cir. 2015). We, along with the Supreme C ourt and other circuit c ourts, regularly apply the cat’s paw theory of liabili ty to a variety of claims. See, e.g. , Staub , 562 U.S. at 419 (applying the cat’s paw theory to a Uniformed Servi ces Employment and Reemployment Rights Act claim); DeNoma v. Hamilton Cty. Ct. of Common Pleas , 626 F. App’x 101, 110 (6th Cir. 2015) (applying the cat’s paw theory to a § 1983 gender discrimination claim); Chattman v. Toho Tenax Am., Inc. , 686 F.3d 339, 350–51 (6th Cir. 2012) (applying the cat’s paw theory to a Title VII race discrimination claim); Shager v. Upjohn Co. , 913 F.2d 398, 405–06 (7th Cir. 1990) (applying the cat’s paw theory to an Age Disc rimination in Employment Act claim). Other circuit courts apply the cat’s paw theory of liability to FMLA claims. See Ameen v. Amphenol Printed Circuits, Inc. , 777 F.3d 63, 70 (1st Cir. 2015) (apply ing the cat’s paw theory in a FMLA case, and finding that plaintiff di d not meet his burden to prove th at the proffered reason for his discharge was pretext); Marez v. Saint-Gobain Containers, Inc. , 688 F.3d 958, 965 (8th Cir. 2012) (applying the cat’s paw theory in a FMLA case and affirming a liquidated damages award on the basis of cat’s paw liability); Hyde v. K.B. Home, Inc. , 355 F. App’x 266, 273–74 (11th Cir. 2009) (applying the cat’s paw theory in a FMLA case, and finding that plaintiff did not meet her burden to prove that the biased supervis or actually had input into the decision).
The rationale for the cat’s paw theory applies equally to FMLA retaliation claims as to other types of employmentdiscrimination and reta liation claims. The pr imary rationale for the cat’s paw theory of liability is that, because “acompany’s organizational chart does not always accurately reflect its decisionmaking process,” an employee of lower rank may have significant
influence over the decisionmaker. BCI Coca-Cola , 450 F.3d at 486. The ultimate decisionmaker may be detached from day-to-day operations, and consequently “apt to defer to the judgment of the [person] on the spot” and at risk of being “the conduit of [the lowe r-level decisionmaker’s] prejudice.” Shager , 913 F.2d at 405. As a result, “[a] biased low-level supervisor with no disciplinary authority might effectuate the termin ation of an employee from a protected class by recommending discharge or by selectively reporting or even fabricating information in
communications with the formal decisionmaker.” BCI Coca-Cola , 450 F.3d at 486. Given this risk, the cat’s paw theory accomplishes two goals . First, the cat’s paw theory addressesNo. 16-5614 Marshall v. Rawlings Co. Page 10

situations in which decisionmak ers unthinkingly adopt the reco mmendations of their biased lower-level supervisors; second, it “forecloses a strategic option for employers who might seek to evade liability . . . through w illful blindness as to the source of reports and recommendations.”
Id. Because there is just as much possibility of lower-level supervisors influencing decisionmakers to engage in FMLA discrimina tion as discrimination based on race, gender, military service, or age, it makes sense to apply the cat’s paw theory to FMLA claims.
The agency principles that support application of the cat’s paw theory to other types of claims also apply to claims of FMLA discrimina tion. “[S]ubordinate bias theories comport with the basic agency principles incorporated by statute into Title VII” because in“Title VII, the term ‘employer’ includes not only any ‘person engaged in an industry affecting commerce’ but ‘any agent of such a person.’” BCI Coca-Cola , 450 F.3d at 485 (quoting 42 U.S.C. § 2000e(b));
accord Staub , 562 U.S. at 420–21 (applying principles of agency law to hold that employer can be liable under the cat’s paw theory); Shager , 913 F.2d at 404–05 (same). Similarly, in the FMLA “[t]he term ‘employer’ . . . includes . . . any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). These agency principles al so apply to claims of FMLA retaliation. Therefore, we will apply the cat’s paw theoryof liability to FMLA retaliation claims.
Having determined that we will apply the cat’s paw theory of liability to FMLA retaliation claims, we must consider three more que stions about cat’s paw liability. The first is whether the cat’s paw theory of lia bility applies in situ ations involving more than one layer of supervision between the plaintiff and the ultimate decisionmaker. This question is relevant to
Marshall’s termination. 2 Marshall alleged that Bradshaw and Elsner sought to fire her in retaliation for taking FMLA leave, which they did by manipulating George Rawlings. George Rawlings was at the top of Th e Rawlings Company’s organizati onal chart. Plumley was below George Rawlings and above lower-level supervisor s Bradshaw and Elsner. Bradshaw and Elsner were below Plumley and above Marshall. Marsha ll was toward the bottom of the organizational

2 In the decision to demote Marshall, Marshall’s allegations suggest that Plumley was the ultimate decisionmaker and Bradshaw and Elsner worked together, forming a single layer of supervision between Marshall and Plumley. The question about how to handle multiple layers of intermediate supervision, therefore, is not relevant to the decision to demote Marshall.No. 16-5614 Marshall v. Rawlings Co. Page 11

chart. The chain of events th at led to Marshall’s termination started when Elsner reported to Plumley that Marshall made a claim that Bradshawharassed her. After meeting with Marshall and Elsner, Plumley served as a conduit to George Rawlings, informing him that Marshall made
an unfounded claim of harassment. Elsner also to ld Rawlings that Bradshaw’s actions were not harassment. During a brief meeti ng with Marshall, George Rawlings fired her. Application of the cat’s paw theory in this situation encompasse s allowing a plaintiff to put forward the theory that a lower-level supervisor (here, Bradsh aw and Elsner) influenced an intermediate decisionmaker (Plumley) who in turn, either ob livious to or adopting the subordinate’s bias, influenced the ultimate decisionmaker (George Rawlings).
Plaintiffs such as Marshall can proceed on su ch a theory. All of the justifications for applying the cat’s paw theory apply with equal force when there are multiple layers of decisionmakers; consequently, there is no reason to forbid plaintiffs from pursuing a theory that a lower-level supervisor carried out a scheme to discriminate by influencing multiple layers of higher-level supervision. Of course, in some cases, allegations that a lower-level supervisor successfully carried out such a sc heme might be far-fetched. But those cases can be screened out using existing legal procedures. Those cases are no reason to bar recovery for plaintiffs who can put forward convincing proof that a biased low-level supervisor influenced multiple layers of higher-level supervisors.
Second, we must address the relationship between the McDonnell Douglas burdenshifting framework and cat’s paw liability. The McDonnell Douglas burden-shifting framework applies to claims of FMLA retaliation based on indirect evidence. U nder this framework, a plaintiff has the burden to make a prima facie case of discrimination; if the plaintiff can make a prima facie case, the defendant has the burden to articulate a nondiscriminatory reason for the adverse employment action; if the defendant can provide a nondiscriminatory reason, the plaintiff has the burden to show that the reason was pretext. Edgar , 443 F.3d at 508 (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–04 (1973)). A plaintiff establishes pretext “by showing that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination.” Donald v. Sybra, Inc. , 667 F.3d 757, 762 (6th Cir. 2012). In some past cases, we “declined to consider whether and to whatNo. 16-5614 Marshall v. Rawlings Co. Page 12

extent cat’s paw liabil ity fits into the [ McDonnell Douglas ] framework.” DeNoma , 626 F. App’x at 105 (quotation marks and citati ons omitted). On the other hand, we have also integrated the McDonnell Douglas framework and cat’s paw liability by an alyzing them one after the other. Id. at 105–10; Chattman , 686 F.3d at 347–53. Plaintiffs alleging FMLA retaliation based on a cat’s paw theory of liability must satisfy the requirements of the McDonnell Douglas framework and prove that the decisionmaker was the cat’s paw of a biased subordinate, so it makes sense to analyze each issue separately. As both Chatman and DeNoma show, proceeding in this manner is straightforward. We see no reason not to continue with this approach.
Third and finally, we must addr ess how the honest-belief rule applies in cases proceeding on a cat’s paw theory of liability. Under the honest-belief rule, “as long as an employer has an honest belief in its proffered nondiscriminatoryreason for discharg ing an employee, the employee cannot establish that the reason was pretex tual simply because it is ultimately shown to
be incorrect.” Majewski v. Automatic Data Processing, Inc. , 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v. Chrysler Corp. , 155 F.3d 799, 806 (6th Cir. 1998)). The honest-belief rule applies “where the employer reasonab ly relied on the particularized facts that were before it at
the time the decision was made.” Id. (internal quotation marks omitted). “The rationale behind the [honest-belief] rule is that the focus of a disc rimination suit is on the intent of the employer. If the employer honestly, albeit mistakenly, belie ves in the non-discriminatory reason it relied upon in making its employment decision, then the employer arguably lacks the necessary discriminatory intent.” Smith , 155 F.3d at 806.
Cat’s paw liability, however, rests on the pr emise that organizational employers do not operate in a vacuum, and that a decisionmaker might rely on the reco mmendation of a biased lower-level supervisor. See Staub , 562 U.S. at 418–21. In such circumstances, the honesty or sincerity of the decisionmaker’s belief is irrelevant. What is relevant is that the belief is rooted
in a biased recommendation. See Staub 562 U.S. at 418–19 (“the exer cise of judgment by the decisionmaker does not prevent the earlier ag ent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm”). In a cat’s paw case, the allegation is that a biased subor dinate intentionally manipulated the decisionmaker. Under theseNo. 16-5614 Marshall v. Rawlings Co. Page 13

circumstances, the decisionmaker’s intent does not matter, and consequen tly the honesty of the
decisionmaker’s belief does not matter. 3

That is not to say that evidence of a biased recommendation is always sufficient to sustain a cat’s paw theory. A supervisor who conducts an in -depth and truly independent investigation is not being mani pulated by biased lower-level s upervisors, but rather making a decision based on an independent evaluation of the situation. If the d ecisionmaker conducts an investigation that “results inan adverse action for reasons unrelated to the supervisor’s original biased action . . . then the employer will not be liable.” Staub , 562 U.S. at 421 (emphasis added). As the Court explained, however, there is no “hard-and-fast rule” that a decisionmaker’s independent investigation defeats a cat’s paw claim. Id. at 420. Rather, “the traditional tort-law concept of proximate cause” applies. Id. (citations omitted). Thus, an independent investigation defeats a cat’s paw claim only whenthe investigation “determin[es] that the adverse action was, apart from the supervisor’s reco mmendation, entirely justified.” Id. at 421; see Sharp v. Aker Plant Servs. Grp., Inc. , 726 F.3d 789, 797 (6th Cir. 2013) (conc luding that “independent fact gathering” is necessary to defeat a cat’s paw claim). 4

B. The Rawlings Company Is Not Entitled to Summary Judgment on Marshall’s FMLA Retaliation Claim Having addressed these legal ques tions, we now consider their application to the facts of this case. The district court granted summary j udgment in favor of The Rawlings Company. We
review de novo a district court’ s grant of summary judgment. Laster v. City of Kalamazoo , 746 F.3d 714, 726 (6th Cir. 2014). Summary judgment is proper “if the movant shows that there

3 In a cat’s paw case, the honest-belief rule might appl y to the allegedly biased lower-level decisionmaker; that is, the defendant might be able to show that the lower-level subordinate was not actually biased by showing that the lower-level subordinate held an honest belief that justified the adverse action against the plaintiff.
4 In one example of an investigation sufficiently independent to “change the subordinate’s discriminatory animus from a proximate cause to a cause that is too remote to support cat’s paw liability,” a fire department supervisor, who was potentially biased, filed charges with the Board of Fire and Police Commissioners, the ultimate decisionmaker, requesting that the Board terminate a fire department employee. Woods v. City of Berwyn , 803 F.3d 865, 868, 870 (7th Cir. 2015). The Board held a hearing and “heard testimony, opening and closing statements, viewed exhibits and ruled on objections.” Id. at 868. The Seventh Circuit held that “the hearing broke the chain of causation because the record shows that the Board did not rely on the facts presented by the presumably biased [supervisor]. Instead, the Board relied on testimony from [a different fire department employee], who did not harbor any discriminatory animus.” Id. at 871.No. 16-5614 Marshall v. Rawlings Co. Page 14

is no genuine dispute as to any ma terial fact and the movant is en titled to judgment as a matter of
law.” F ED

. R. C IV . P. 56(a). At the summary judgment st age, the court determines whether there are genuine disputes of materi al fact that should go to a ju ry; it does not find facts. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52 (1986). There is a genuine dispute of material fact if “there is sufficient evidence favoring the nonmovi ng party for a jury to return a verdict for that party.” Id. at 249. The party moving for summary j udgment carries the initial burden of showing the absence of a genuine dispute of material fact; if it satisfies that burden, the nonmoving party must show “specific facts th at reveal a genuine issue for trial.” Laster , 746 F.3d at 726 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986)); see also F ED

. R. C IV

. P. 56(c).

In this FMLA retaliation case, where there is no direct evidence of retaliation, we must apply the McDonnell Douglas burden-shifting framework. At th e summary judgment stage, we must determine whether, within the steps of the McDonnell Douglas framework, there are genuine disputes of material f act. And, keeping in mind our conc lusion about the best way to proceed in cases implicating both the McDonnell Douglas burden-shifting framework and the cat’s paw theory of liability, we will begin byanalyzing the allegations of FMLA retaliation against Bradshaw and Elsner. If we determine th at Marshall’s allegations against Bradshaw and Elsner would satisfy the McDonnell Douglas framework, we will analyze Marshall’s cat’s paw allegations.
Moving to application of the McDonnell Douglas framework to Marshall’s allegations against Bradshaw and Elsner, we first ask whether Marshall made a prima facie case of FMLA
retaliation. Edgar , 443 F.3d at 508. A plaintiff establishes a prima facie case of FMLA retaliation by showing that sh e availed herself of a protect ed right under the FMLA; her employer knew she availed herself of her ri ght under the FMLA; she suffered an adverse employment action; and there was a causal connec tion between the exercise of her rights under the FMLA and the adverse employment action. Id. ; Seeger v. Cincinnati Bell Tel. Co., LLC , 681 F.3d 274, 283 (6th Cir. 2012). The first three elem ents are undisputed. There is no dispute that
Marshall took FMLA leave. There is no dispute that Bradshaw and Elsner knew that MarshallNo. 16-5614 Marshall v. Rawlings Co. Page 15

took FMLA leave. There is also no dispute th at Marshall suffered two adverse actions, as she
was demoted after her first FMLA leave a nd fired after her sec ond FMLA leave.
The fourth element is disput ed. Marshall alleged that Bradshaw expressed animosity toward her and that he made inappropriate comme nts about her FMLA leave, and that Bradshaw
and Elsner were motivated to demote her and th en fire her because she took FMLA leave. The Rawlings Company countered that it did not demote Marshall because she took FMLA leave, but rather because she was unable to keep up with her workload as a team lead. The record contains conflicting evidence surrounding Marshall’s performance both befo re and after her demotion, showing that she performed well in some areas and poorly in others. R. 37-12 (Estrada Aff. at ¶ 12) (Page ID #435); R. 34-14 (Marshall & Br adshaw Emails) (Page ID #253–58); R. 34-5 (Marshall Dep. at 189–98) (Pag e ID #231–32); R. 34-18 (Mid-Year Assessment) (Page ID #274– 75). The record does not elucidate the relative importance of these different areas or how Marshall’s overall performance co mpares with her co-workers’ pe rformance. And Bradshaw’s question about whether Marshall planned to take more leave in the same meeting he directed her to clear the backlog of NR files permits the inference that Bradshaw was displeased with Marshall’s previous exercise of her FMLA rights. R. 37-1 (M arshall Dep. at 166) (Page ID #357). In addition, the record also contains co nflicting evidence as to why George Rawlings fired Marshall. R. 34-2 (Plumley Aff. at ¶ 25–2 6) (Page ID #166); R. 34-20 (Rawlings Aff. at ¶ 14) (Page ID #280); R. 34-5 (Marshall Dep. at 166–78) (Page ID #227–29); R. 37-1 (Marshall Dep. at 216) (Page ID #363). To determine whether Rawlings fire d Marshall in retaliation for taking FMLA leave or based on a belief that she a ttempted to deflect criticism of her excessive breaks by making a false claim of harassment, a tr ier-of-fact would need to weigh the evidence and make credibility determinations to decide wh ether to believe Marshall or her supervisors. The material facts surrounding why The Rawli ngs Company demoted and fired Marshall are disputed and, on this record, a reasonable jury could find a caus al connection betw een Marshall’s use of FMLA leave and the subsequent adverse actions.
Proceeding to the second step, the burden shif ts to The Rawlings Company to articulate a legitimate nondiscriminatory reason for the adverse employment actions. Edgar , 443 F.3d at 508. Again, The Rawlings Company argues that it demoted Marshall because her performanceNo. 16-5614 Marshall v. Rawlings Co. Page 16

was inadequate and fired Marshall because sh e made a false claim of harassment against Bradshaw. If true, these are legitimate r easons for The Rawlings Company’s actions.
Marshall responds, however, that her performa nce was adequate, even exceptional, and that her complaints against Bradshaw were justified, and thus Th e Rawlings Company’s
articulated reasons for its actions are pretexts. And, as explaine d above, it is not clear that Marshall’s performance in 2012 jus tified a demotion, or that her allegations against Bradshaw
were false. A trier-of-fact would need to weigh the evidence and make credibility determinations in order to determine why Th e Rawlings Company de moted and then fired Marshall. There are genuine disputes of mate rial facts relevant to whether The Rawlings Company’s articulated nondiscri minatory reasons for demoting and then firing Marshall were based in fact, actually motivated the adverse actions, and were sufficient to warrant those
actions. See Donald , 667 F.3d at 762.
Therefore, at each step of the McDonnell Douglas burden-shifting test , there are genuine disputes of material fact. As far as Marshall’s allegation that Br adshaw and Elsner were biased against her is concerned, Marshall’ s claim survives summary judgment.
We now move to consider cat’s paw liability. Because Bradshaw and Elsner were not the final decisionmakers, Marshall’s claim survives summary judgmentonly if there is at least a genuine dispute of material fact as to whether Bradshaw and Elsner influenced Plumley to
demote Marshall and influenced Geor ge Rawlings to fire Marshall.
There is a genuine dispute of material fact as to whether Bradshaw and Elsner influenced Plumley’s decision to demote Marshall. Bradsh aw initially recommended demoting Marshall. R. 37-2 (Elsner Dep. at 80) (Pag e ID #398). Although Plumley testif ied that she “was the final decision-maker in demoting [Marsha ll],” R. 34-2 (Plumley Aff. at ¶ 9) (Page ID #165), she did not clarify what role Bradshaw’s recommendation played in her decision. Plumley stated that
her decision was based on Mars hall’s performance, but she did not clarify whether her information about Marshall’s performance came from Bradshaw or from an independent investigation, id . at ¶ 12 (Page ID #165), and The Rawli ngs Company “offers no evidence that [Plumley] conducted any inde pendent fact gathering,” Sharp , 726 F.3d at 797. In fact, Plumley’sNo. 16-5614 Marshall v. Rawlings Co. Page 17

testimony that she was not familiar at the time with Marshall’s use of FMLA leave, R. 34-2 (Plumley Aff. at ¶ 12), strongly suggests that any investigatio n Plumley may have conducted was cursory at best. Further, there is circumst antial evidence that Bradshaw had a significant influence on Plumley’s decision. Plumley appears to have ma de the decision shortly after receiving Bradshaw’s recommendation, which may indi cate that she did not independently verify Bradshaw’s claims about Marshall’s performan ce. Plumley also had Bradshaw and Elsner inform Marshall that she was being demoted, whic h may indicate that she vi ewed their advice as integral to her decisionmaking pro cess. There is a genuine dispute of material fact as to whether
Bradshaw and Elsner influenced Plum ley’s decision to demote Marshall.
There is also a genuine dispute of material fact as to whether Bradshaw and Elsner influenced George Rawlings’s de cision to fire Marshall. Marshall’s allegation is that Bradshaw and Elsner influenced Plumley, who in turn infl uenced George Rawlings, who made the ultimate
decision to fire Marshall. Th e record provides insufficient information about Bradshaw and Elsner’s potential influence over Plumley and Plumley’s potential in fluence over George Rawlings. The record does reveal that when Plumley met with Marshall, Elsner was also present. R. 34-2 (Plumley Aff. at ¶ 14) (Page ID #166). The record also suggests that George Rawlings’s only information about the asserted false claim of harassment came from a meeting with Plumley, a conversation with Elsner, and a brief, five- to te n-minute meeting with Marshall, at which he fired Marshall. R. 34-20 (Rawlings Aff. at ¶ 7) (Page ID #279); R. 34-8, (Elsner Aff. at ¶¶ 11–13) (Page ID #241); R. 37-1 (Marshal l Dep. at 8) (Page ID #366). Further, Elsner testified that Rawlings was consid ering terminating Marshall even be fore Rawlings met with her. R. 34-8, (Elsner Aff. at ¶ 13) (Page ID #241). And there is no indication Plumley or Rawlings
ever bothered to ask Bradshaw about his behavior towards Marshall. On this record, a reasonable jury could conclude that Plumle y and Rawlings did not conduct an adequate independent investigation—and had no interest in doing so—and merely served as the conduit for their subordinates’ retaliatory intent.
Therefore, there are genuine disputes of materi al fact as to whether Bradshaw and Elsner were biased against Marshall and sought to have her demoted a nd then fired. There are also genuine disputes of material fact as to whether Bradshaw and Elsner influenced Plumley andNo. 16-5614 Marshall v. Rawlings Co. Page 18

whether Plumley influenced George Rawlings’s decision to fire Marsha ll. Because of these genuine disputes of material fact, the district c ourt erred by granting summary judgment on
Marshall’s claim of FMLA retaliation.

III. ADA DISCRIMINATION
Marshall also argues that The Rawlings Comp any discriminated against her because of her mental-health problems, in violation of the ADA. 5 The ADA prohibits “‘discriminat[ion] against a qualified individual on th e basis of disability in regardto job application procedures, the hiring, advancement, or discharge of em ployees, employee compensation, job training, and other terms, conditions, and pr ivileges of em ployment.’” Demyanovich , 747 F.3d at 433 (quoting 42 U.S.C. § 12112(a)). “As with FMLA claims, pl aintiffs may prove disability discrimination using the McDonnell Douglas burden-shifting framework.” Id

. Marshall makes the same arguments to s upport her ADA discrimination claim as her
FMLA retaliation claim. Marshall testified to her belief that Bradshaw and Elsner were biased against her because she had ment al-health problems. R. 34-5 (Marshall Dep. at 177–78) (Page ID #229). She argued that, regard ing her demotion, Bradshaw and Elsner influenced Plumley. She argued that, regarding her termination, Brad shaw and Elsner influenced Plumley who, in turn, influenced George Rawlings.

As with Marshall’s FMLA retaliation claim, there are genuine disput es of material fact
relevant to whether Bradshaw and Elsner were in fact biased against Marshall, and relevant to
whether Bradshaw and Elsner influenced Plumle y and George Rawlings’s decisions to take adverse employment action against her. Because of these genuine disputes of material fact, the district court erred by granting summary judgm ent on Marshall’s clai m of ADA discrimination.

5 The Rawlings Company argues that Marshall waived th is argument, but Marshall’s brief does argue that Bradshaw and Elsner were biased against her because she took FMLA leave and because of her disabilities. See Appellant Br. at 34, 37, 39, 41, 44, 49; see also Reply Br. at 4–5. Marshall’s discussion of the ADA and the differential treatment she received because of her disabilities is sufficient to overcome waiver.No. 16-5614 Marshall v. Rawlings Co. Page 19

IV. FMLA INTERFERENCE
Marshall also alleged FMLA interference. The district court di d not err by granting summary judgment on Marshall’s claim of FMLA interference. Under the FMLA interference theory, “[i]f an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred, rega rdless of the intent of the employer.” Seeger , 681 F.3d at 282 (alteration in original) (internal quotation marks omitted). Interference occurs when an employer “shortc hange[s] [an employee’s] leave time, den[ies] reinstatement, or otherwise in terfere[s] with [an employee’s] substantive FMLA rights.” Id. at 283.
It is undisputed that Marshall received all the FMLA leave she requested, including two longer absences in February 2012 and March 2013 and intermittent days off after March 2013. R. 37-1 (Marshall Dep. at 113–15) (Page ID #346). It is further undisputed that after her first longer FMLA leave, she was reinstated to her position as team lead, R. 34-5 (Marshall Dep. at 133–36) (Page ID #225), and after her second longer FMLA leave, she was reinstated to her position as analyst, R. 37-22 (FMLA Leave Char t) (Page ID #457); R. 37-23 (Elsner Email to Analysts) (Page ID #458). The Rawlings Co mpany prorated the financial and production standards Marshall was required to meet to account for the days she was out on FMLA leave. R. 37-2 (Elsner Dep. at 141) (Page ID #412). More over, both adverse employment consequences Marshall faced (demotion and termination) occurred several months after she was initially reinstated to the position she held before taking leave.
Marshall has not produced any evidence to show that Rawli ngs failed to provide FMLA
leave or reinstatement after le ave. Like the plaintiff in Seeger , she cannot show that her employer denied any of he r rights under the FMLA. Seeger , 681 F.3d at 283. Therefore, Marshall’s FMLA interference claim fails, and the district court did not err by granting summary judgment to The Rawlings Company on this claim.

V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, Marshall alleged intentional inflicti on of emotional distress under Kentucky state law. The district court did not err by granti ng summary judgment on Mars hall’s state law claimNo. 16-5614 Marshall v. Rawlings Co. Page 20

of intentional infliction of emo tional distress (also referred to outrage or outrageous conduct). “Kentucky still takes a restrictive/limited appro ach to the tort of outrageous conduct, which covers only outrageous a nd intolerable conduct.” Wathen v. Gen. Elec. Co. , 115 F.3d 400, 407 (6th Cir. 1997) (internal quotation marks and cita tion omitted). In order to prove intentional
infliction of emotional distress “the plaintiff must show that th e defendant’s conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id

. (internal quotation marks and citation omitted); see also Brewer v. Hillard , 15 S.W.3d 1, 6–7 (Ky. Ct. App. 1999).

None of the facts Marshall alle ges rise to the level of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Wathen , 115 F.3d at 407. Making a snide remark about taking leave, telling an empl oyee she is not doing her job effectively during a demotion meeting, and crea ting an awkward situation at lunch are not actions so extreme that they are “utterly intolerable in a civilized community.” Id.
Because no incident at Marshall’s workplace ro se to the level of extreme and outrageous conduct, the district court did not err by granting summary judg ment to The Rawlings Company
on Marshall’s claim of intentional infliction of emo tional distress.

VI. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment in part and
REVERSE in part and REMAND for further proceedings consistent with this opinion.No. 16-5614 Marshall v. Rawlings Co. Page 21

_______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

_______________________________________________________ SUTTON, Circuit Judge, concurring in part and dissenting in part. I agree with the Court that The Rawlings Company did not interfer e with Marshall’s FM LA leave and did not intentionally inflict emotional distress. Marshall received all of the FMLA leave she requested. And the company’s behavior di d not surpass Kentuc ky’s high bar for bringing a claim for
intentional infliction of emotional distress, which require s extreme and outrageous conduct.
I part ways with the Court on the prope r resolution of the ADA discrimination and FMLA retaliation claims. Under our cases, the “hone st belief” rule provides an initial answer to
these claims. See Ferrari v. Ford Motor Co. , 826 F.3d 885, 895 (6th Cir. 2016). The two decisionmakers, Laura Plumley and George Rawlings, believed that Marshall should be demoted, and eventually fired, because she earned it—as an inefficient employee who falsely claimed harassment to distract from her poor work ethic. At the pretext stage of the McDonnell Douglas test, that’s all that’s needed to show that th e plaintiff’s claims fail as a matter of law. If this case turned solely on the application of th e honest-belief rule, as I r ead the Court’s opinion, all three of us would agree that the employer should prevail.
The Court permits these claims to go to a jury on the ground that the “cat’s paw” theory
overrides the honest-belief rule. I doubt we can sidestep the honest -belief rule so easily. But even if we could, the “cat’s paw” theory fails on its own terms here. Under the theory, a lowerlevel supervisor, motivated by actionable animus, commits actions or makes recommendations to convince the decisionmaker, oblivious to the discriminatory animus, to take an adverse employment action against the employee. See Staub v. Proctor Hosp. , 562 U.S. 411, 418–19, 423 (2011). The upshot is that the decisionmaker does the dirty work for a retaliating supervisor.
But the lower-level supervisors in our case, Jeff Bradshaw and Mi ke Elsner, were not “motivated by discriminatory animus” and “hones tly believed” the nondiscri minatory reasons for the demotion and firing. Ferrari , 826 F.3d at 896 & n.5. Start with the evidence wi th respect to Bradshaw, who recommended Marshall’s demotion. After Plumley agreed to demote Marshall,No. 16-5614 Marshall v. Rawlings Co. Page 22

Bradshaw conveyed that decision to Marshall. Bradsh aw’s criticism of Ma rshall at the demotion meeting, as Marshall testified at her deposition, was that Marshall “do[es]n’t know what [she’s] doing, [she’s] completely inefficient. [She] co me[s] in here long hours and [she] still can’t get [her] job done.” R. 37-1 at 27. That reflects an honest belief that Marshall worked too much to do too little, not that she was skipping too much work for her FMLA leave. And the lunch
confrontation about office morale was over half a year after the demotion and had nothing to do
with Marshall’s FMLA leave or mental health . The relevant law prohibits employers from retaliating. It does not obligate them to be polite and cheerful (even if that is the better course).
Bradshaw’s allegedly sarcastic question five months after Mars hall had returned from her FMLA leave—“So are you planning on being out any time soon again?”—does not alter this conclusion. R. 34-5 at 19. Bradshaw and Marshall met to hammer out a timeline to complete work she could not seem to get done, and Marsha ll had used vacation and sick time recently. In context, Bradshaw’s question was just the so rt of stray and ambiguous comment that is insufficient to prove discriminati on, which is probably why she didn ’t mention it when she first alleged he had harassed her. See, e.g. , Donald v. Sybra, Inc. , 667 F.3d 757, 763–64 (6th Cir. 2012); Smith v. Leggett Wire Co. , 220 F.3d 752, 760 (6th Cir. 2000); Phelps v. Yale Sec., Inc. , 986 F.2d 1020, 1025–26 (6th Cir. 1993).

Turn to the evidence with re spect to Elsner. He also in fluenced the demotion decision, and he initiated the inquiry into Bradshaw’s a lleged harassment, which led to George Rawlings’
decision to fire Marshall. OnSeptember 23, 2013, Elsner and another supervisor noticed that
Marshall and a co-worker were not at their desks most of the day. The supervisors pulled the phone reports to confirm that Marshall and the co-worker hadn’t been working. When confronted, the co-worker apologi zed. But Marshall responded by alleging that Bradshaw had
harassed her at the demotion mee ting and lunch. Elsner report ed the alleged harassment to Human Resources. Elsner, Plumley, and Marsha ll met to discuss the allegation. Plumley reassured Marshall by saying: “Gloria, you’re not going to ge t fired.” R. 37-1 at 36. But Plumley remained unconvinced by Marshall’s al legations and reported the investigation to George Rawlings, the owner of the company. Rawlings was the one who thought of firing Marshall, and he did so only afte r they met to discuss her harassm ent allegation. Nothing in thisNo. 16-5614 Marshall v. Rawlings Co. Page 23

narrative suggests that Elsner had a discriminatoryanimus toward Marshall. All the evidence points toward Elsner’s honest belief that the ha rassment allegation was a false excuse to deflect attention away from Marshall’s poor work ethic. Even if there could be a cat’s paw of a cat’s paw, that was assuredly not the role George Rawlings was playing when he suddenly decided to
fire Marshall.
For these reasons, I would affirm Judge Ru ssell’s thoughtful decision across the board. The Court seeing it otherwise on the FMLA retaliation and ADA discrimination claims, I respectfully dissent from those parts of its ruling.